Duty To Respond
The New York bar regulatory system had a wonderful tool for focusing an accused attorney on the obligation to respond by promptly suspending the attorney who fails to do so and disbarring if the response does not come within six months.
The Appellate Division for the First Judicial Department held
By order entered July 14, 2016, this Court granted the Committee’s motion and suspended respondent from the practice of law, effective immediately, and until further notice of the Court (142 AD3d 122 [1st Dept 2016]). This Court found an interim suspension was warranted where respondent failed to fully cooperate with the Committee’s investigation by failing to complete an Excel spreadsheet documenting his IOLA account, failing to explain the shortfalls in his IOLA account after receiving a $225,000 downpayment he deposited in connection with the sale of his clients’ apartment, and failing to answer the Committee’s inquiry as to his alleged conversion of $139,000 in escrowed client funds.
A late-blooming effort fell short
Respondent’s affidavit in opposition is not only untimely, but it presents no meritorious arguments warranting denial of the Committee’s motion to disbar pursuant to 22 NYCRR 1240.9(b). Although respondent acknowledges that he received a copy of this Court’s July 14, 2016 order of suspension and that he is represented by experienced and competent counsel, he proffers only conclusory or incredible explanations for his failure to appear or apply in writing for a hearing or reinstatement within six months from the date of the order of suspension. Additionally, not only during that six-month period, but to this day, respondent has taken no steps to provide the Committee with any of the information it has sought from him, notwithstanding the fact that his failure to comply with the Committee’s requests resulted in his suspension in the first instance. Respondent’s attempt to shift the blame from himself to the Committee for not providing him with guidance as to what actions he should have taken or what information he should have provided is unconvincing. The Committee’s April 27 notice of motion clearly set forth that his failure to appear or apply in writing for a hearing or reinstatement within six months from the date of the order of suspension would render him subject to disbarment, and our suspension decision lists the information and explanations respondent was to provide to the Committee.
Respondent’s contention that he lacked the time and resources to seek reinstatement during the six-month period due to his involvement in campaign and fundraising activities related to his 2016 Congressional candidacy lacks credibility, as the six-month period did not expire until mid-January 2017, more than two months after the November 2016 general election was held. Respondent’s claim that he devoted his time following the election to raising money to retire his campaign debt is belied by Federal Election Commission records, which show that his campaign incurred no debt. Furthermore, since respondent’s July 2016 interim suspension, the Committee has received a new complaint against him, which he has failed to answer.
Under the circumstances presented here, where respondent has failed to take any steps to appear before the Committee within the six-month period, has filed an untimely affidavit in opposition in which he asserts conclusory and incredible defenses and has failed to answer a post-suspension complaint against him, disbarment is warranted (see Matter of Ayu, 123 AD3d 44 [1st Dept 2014]; Matter of Jones, 89 AD3d 227 [1st Dept 2011]; Matter of Bechet, 275 AD2d 138 [1st Dept 2000], lv dismissed 96 NY2d 730 [2001]; Matter of Chadi, 243 AD2d 78, 79 [1st Dept 1998]).
Accordingly, inasmuch as more than six months have elapsed since this Court’s July 14, 2016 suspension order, and respondent has neither responded to nor appeared for further investigatory or disciplinary proceedings, the Committee’s motion for an order disbarring respondent pursuant to 22 NYCRR 1240.9(b) should be granted and his name stricken from the roll of attorneys in the State of New York, effective immediately.